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Kuchera v. New Jersey Dep't of Corrections

June 4, 2008

PAUL KUCHERA, SR., APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from the Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: May 12, 2008

Before Judges Stern and C.L. Miniman.

Appellant Paul Kuchera is currently incarcerated at Bayside State Prison in Leesburg, serving a fifteen-year sentence for conspiracy to commit burglary and aggravated assault. In the summer of 2006 he was incarcerated at Southern State Correctional Facility in Delmont and was charged with two disciplinary infractions: *.004 (fighting) and *.803/*.207 (attempting to possess money or currency in excess of $50) in violation of N.J.A.C. 10A:4-4.1. Appellant was convicted of both offenses and was sanctioned. The Associate Administrator affirmed both convictions and the sanctions imposed. Appellant challenges this final agency action.

Although he appeals his conviction of the money offense and the sanctions imposed, appellant did not dispute his attempt to possess $100, which his wife had concealed in a card she sent to him at Southern State at his request. The mail was intercepted on July 27, 2006, and at the suggestion of Sergeant Heaton appellant wrote to Officer Davis on August 1, 2006, and explained that he asked his wife to send him the money so that he could send a birthday gift to his son. Appellant asked to have the money returned to his wife. He was charged with the disciplinary infraction the following day. The hearing officer imposed detention for fifteen days, loss of ninety days of commutation credits and administrative segregation for 120 days.

Appellant did dispute having any involvement in the fight that was found to have occurred on or about July 28, 2006, and appeals his conviction and resulting sanctions. The operative facts are these: On August 2, 2006, at about 7:30 a.m. a secretarial assistant at Southern State discovered an anonymous note in the inmate request box that stated:

Inmate Paul Kuchera has been in a fight here on 5 Unit, his body is all marked up. He's been threatening people on the unit. He said he is gonna harm the C/O on evenings.

His state # is 427755, he a real bully here on 5 Unit, he's crazy. He had a fight on the unit the other night. Look at his body, it's marked up. He's bad news.

That day Sergeant Whildin interviewed appellant, who denied having any problems with anyone and stated that he was not going to harm anyone. Upon examination at the medical department, the nurse observed an old circular bruise in the right clavicular area. She also observed a circular bruise in the left clavicular area with a red scabbed abrasion. She also found bruising to his anterior left upper arm and shoulder and an old circular bruise on the inner aspect of the right knee. Appellant's left kneecap was skinned and he had an old bruise to his left posterior calf. Appellant was placed in detention.

Early in the afternoon on August 2, 2006, another anonymous note was found on the Unit 2-Left officer's desk, which stated that "I overheard Hanson ask Hendrix ['W]ho jumped my boy[?'] Hendrix said ['M]e and ? And you ain't gonna do shit about it.[']" Sergeant Whildin questioned Brandon Hendricks about the contents of the letter and noticed that Hendricks had abrasions on his knuckles and on the top of his head. Upon medical examination, the nurse found that Hendricks had an open wound on his head and a reddened and swollen left middle-finger knuckle. Hendricks was placed in detention and charged with the *.004 infraction for fighting.

Monitoring of appellant's telephone calls disclosed a conversation that he had with his wife in which he stated that on July 28, 2006, he had "blacked out" on the softball field and "F['d] up" an inmate. He also stated that his mouth was "killing" him but that his wife "should see" the other inmate. Consequently, on August 3, 2006, Sergeant Whildin charged appellant with fighting and appellant immediately pled not guilty. Appellant did not request any witness statements or confrontation of any witnesses against him.

Appellant claimed that he got the bruises on his shoulder while playing softball and denied having problems with any other inmate. He denied owing any other inmate any money. Hendricks denied having any problem with appellant and claimed the he received the cuts on his head "from leaning into his locker during count." He also claimed that his reddened knuckle was from using medicine for wart removal, but pointed to his index rather than middle finger. When this discrepancy was called to his attention, he claimed that it was an old boxing injury.

During his interrogation by Investigator Eugene D. Johnson on August 8, 2006, Hendricks related that he heard that Christopher Lemmo in Unit 5 had been punched in the eye by appellant and that he had reported to the Central Medical Office that he had been hit in the eye playing basketball. Hendricks denied owing money to anyone. That same day Investigator Johnson spoke with the nurse who treated Lemmo and asked her to re-examine him and express an opinion regarding the cause of his eye injury. She did so and reported that the broken blood vessels in Lemmo's eye could have been caused by a fight or a basketball. Lemmo was placed ...


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